Amicus Brief: Waples Mobile Home Park v. Reyes

In 2016, four noncitizen families from El Salvador and Bolivia sued the Waples Mobile Home Park in Fairfax County, Virginia, for violating the Fair Housing Act (FHA) by “enforcing a policy that required all adults living at the Park to present proof of legal status in the United States.” They claimed that the policy violated the FHA because of its “disproportionate harm on Latinos.” The district court held that the plaintiffs couldn’t proceed on a disparate-impact theory, but that they could proceed on a disparate-treatment theory. Plaintiffs then voluntarily dismissed their remaining claims and appealed only the district court’s dismissal of their disparate-impact theory.

The Fourth Circuit vacated and remanded, holding that respondents had sufficiently alleged “robust causality” because their state-wide and county-wide demographic statistics alone established that the Policy “was likely to cause Latino tenants at the Park to be disproportionately subject to eviction compared to non-Latino tenants at the Park.” On remand, the district court again granted summary judgment for defendants, relying on their interest in avoiding prosecution under the federal anti-harboring statute. The Fourth Circuit again reversed, holding that plaintiffs “had satisfied their burden … to show a causal connection between the Policy and an attendant disparate impact on Latino Residents.” The court acknowledged that “[a]voiding criminal liability can certainly serve as the basis for a business necessity defense,” but rejected Waples’ defense for two reasons, including that the Justice Department represented that it “does not prosecute residential landlords merely because they do not, in the normal course of business, check the immigration status of every person living in their rentals.” Waples is now seeking Supreme Court review, and the Manhattan Institute joined the Pacific Legal Foundation and Hamilton Lincoln Law Institute on an amicus brief supporting that petition.

In Texas Dept. of Housing & Community Affairs v. Inclusive Communities Project (2015), the Supreme Court held by a 5-4 margin that the FHA proscribes disparate impact discrimination. But it also underscored “key respects” in which “disparate-impact liability has always been properly limited.” Without these “safeguards,” the Court explained, “disparate impact liability might displace valid governmental and private priorities, rather than solely ‘removing artificial, arbitrary, and unnecessary barriers’” that, “in turn, would set our Nation back in its quest to reduce the salience of race in our social and economic system.” (quoting Griggs v. Duke Power Co.  (1971)). Yet both of Inclusive Communities’ core safeguards have become mired in disagreements among the lower courts, as this case shows. The first concerns that “robust causality requirement,” which “ensures that racial imbalance does not, without more, establish a prima facie case of disparate impact and thus protects defendants from being held liable for racial disparities they did not create.” The second concerns the “leeway” FHA defendants have “to state and explain the valid interest served by their policies.” Plaintiffs here conceded that defendants’ asserted interest was legitimate, and it is beyond reasonable dispute that the policy served that interest. But the court nevertheless held that the defendants could not carry their burden, in effect faulting them for failing to show the challenged policy was necessary to serve that interest.

The important reasons Inclusive Communities gave for imposing these “safeguards” have not dissipated in the last decade, and the circuits now are deeply entrenched in their confusion regarding how to apply them. Further, the federal agency charged with enforcing the FHA has changed its position on the questions presented with changing administrations—twice. This case cries out for Supreme Court review.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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